An uncommon outcome at Holy Cross

12:00 pm, February 24, 2010Updated: 12:19 pm, May 19, 2014

The College of the Holy Cross has fewer than 3,000 students. Months after she says she was raped by another student, Jordan, in a men’s bathroom on campus, Melandy feared running into him on the paths of the Worcester, Mass. college, at parties, and at the dining hall where he worked. The sight of him would make her shake, cry, and lose her appetite.

“I was tired of having to change my whole life,” said Melandy, a slight, soft-spoken psychology major. (She asked that only her first name be used to protect her privacy; Jordan is a pseudonym.)

So when she undertook the often painful process of filing disciplinary charges against the other student, Melandy knew that one of two things would happen. Either he would be expelled, or she would leave the school.

In the end, it was his life that would be upended. The college hearing board found Jordan responsible for the school’s most serious charge of “sexual misconduct” — sex without consent — in December 2008. The school dismissed him, revoking his full-tuition scholarship and derailing his academic career and plan to study in Europe, he says. He went back to his native Jamaica, feeling betrayed by his former friend, and “traumatized,” his mother says, by the knowledge that college officials did not believe him.

Expulsion rarely results from college disciplinary actions in sexual assault cases, making the Holy Cross case a notable exception. In interviews the Center for Public Integrity conducted with 33 students who reported being sexually assaulted by another student, four said their alleged attackers were expelled — two of them only after multiple accusations of sexual misconduct. It was far more common for the alleged victim to drop out or transfer, while the accused student remained on campus.

Melandy credits her faith in God, among other things, for the outcome in her case. But she also relied heavily on the school’s unusually detailed sexual assault policy and its comprehensive set of procedures for responding to sexual assault.In preparing her testimony, she frequently consulted a peer advocate at the school, as well as Colby Bruno, an attorney at the Boston-based Victim Rights Law Center. And both Melandy and the accused student cite the role of the college’s public safety officers as key players in the case outcome — particularly their description of the dark bathroom where the incident occurred. That image seemed to resonate, Melandy recalls, with the hearing board members.

“The school had a policy, they enforced the policy, they found her credible and they expelled the guy,” said Bruno, who advised Melandy free of charge. She added that the outcome was unusual even among other cases she had seen at Holy Cross. “That’s the way it should work.”

College administrators sometimes cite the difficulty of acquaintance rape accusations as a reason that so few disciplinary hearings result in tough penalties. But this case was every bit as complex as many other college rape reports: The two students were friends, they were drinking, and the victim waited months to tell the college. It happened on a night in May 2008 when they were hanging out in a group. She says she was a virgin, was drunk for the first time, and was too unaware to resist when he led her, she says, to a public bathroom for the purpose of raping her — locking the door and turning off the light behind them. He says he was also drunk, that she never said no, and that she seemed upset only that he had a girlfriend. It wasn’t until the fall semester that she reported the alleged assault to Holy Cross public safety officers at the urging of a counselor. There was no rape kit performed, and no obvious physical injuries.

At many other schools, the Center has reported, similar reports were ignored or dismissed for lack of evidence. Instead, Melandy’s case ended up before a Holy Cross hearing board.

Brett Sokolow, a well-known consultant to college administrators, was commissioned to help Holy Cross overhaul its sexual assault policy a decade ago. He recommends that schools frame sexual assault as an offense without consent, rather than an offense against the will of the victim. The difference, he says, shifts the responsibility from the victim having to prove refusal to consent, and requires the initiator of the sexual activity to demonstrate that consent was given. He recommends too, that colleges be specific about what constitutes incapacitation by alcohol, a common factor in college rape cases.

“Holy Cross is one of the schools that gets it right, as far as I’m concerned,” Sokolow says, noting in particular the college’s thoroughness in implementing its own policy. It trained residence hall staff, public safety officers, faculty, and anyone else who might come in contact with victims. Members of campus judicial panels also receive about three hours of training on sexual assault, according to the dean of student conduct.

In preparing her testimony against Jordan, Melandy highlighted the parts of the policy that seemed to back her up:

[I]t is the responsibility of the initiator … to make sure that he/she has the consent from his/her partner(s).

Consent may never be given … by one who is incapacitated as a result of alcohol.

Silence … may not … be taken to imply consent.

Too uncomfortable to tell a professor about the accusation against him, Jordan did not bring a faculty advisor to the hearing in mid-December 2008. On the other side of a partition, Melandy sat beside a trusted statistics professor, as well as the dean of student conduct and two public safety officers. A male friend of Melandy’s told the campus panel that he could see how intoxicated she was on the night in question.

Colleges are obligated to conduct their own investigations into sexual assault reports. But they often don’t. Here, again, Holy Cross proved to be an exception; the two public safety officers — trained in sexual assault investigation — testified about what they found. Jordan had said the bathroom was not that dark, but the officers said that with the light switched off, it would have been pitch black. Their testimony also differed from his on the size of the bathroom.

“At that point, I said, OK, wow, I know I’m going to lose,” said Jordan.

Holy Cross did not provide records of the outcomes in previous sexual assault cases. Bruno, the victim rights attorney, said that other cases she had seen at Holy Cross resulted in findings of “not responsible.” An administrator said expulsion was the most common outcome when students are found responsible for rape, reflecting a philosophy that the school has an obligation to protect its community.

“I think there’s certain conduct on a college campus that’s just not acceptable,” says Paul Irish, dean of student conduct and community standards. “And if someone does it, they can’t be a community member any more. Period.”

After the hearing, Jordan finished his finals and packed his bags, leaving behind what he couldn’t fit in two suitcases.

He believes it was unfair that the school exacted such a punishment without giving him the due process that a criminal trial would have afforded. “The whole process is fundamentally flawed,” and “ridiculous,” says Jordan, now a law student in Kingston. In a letter to the Holy Cross president, he appealed the board’s decision, saying that Melandy initiated the sexual contact. The appeal was denied.

The school defends its process, saying that attendance at Holy Cross is a privilege, not a right.

The campus panel’s decision to expel Jordan brought Melandy to tears — of joy and relief, this time. A year later, she was preparing to graduate from Holy Cross, and studying for the GRE.

“I guess you never really forget — not just the rape, but you don’t forget the process, either,” she says. “But I feel like I’m at peace right now, and that’s what I wanted.”

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